2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iv ISSUE PRESENTED...1 INTRODUCTION...1 STATEMENT OF THE CASE...5 A. The U.S. Navy embarks on a massive shipbuilding campaign to fight World War II...5 B. Crane Co. supplies valves to the Navy...6 C. Lt. O Neil is exposed to asbestos on the USS Oriskany in the 1960 s, long after the Navy had replaced the asbestos-containing components supplied with Crane Co. s valves...9 D. Lt. O Neil contracts mesothelioma and his wife and children sue several entities that manufactured or supplied asbestos to the Navy. After a trial against the non-settling defendants, the court grants nonsuit. The Court of Appeal reverses LEGAL DISCUSSION I. CRANE CO. IS NOT STRICTLY LIABLE FOR INJURIES CAUSED BY EXPOSURE TO ASBESTOS-CONTAINING PRODUCTS IT DID NOT MANUFACTURE OR SUPPLY A. This Court has imposed strict liability on only those entities that place defective products into the stream of commerce i

3 B. The Taylor court correctly recognized that the stream of commerce rule prohibits courts from imposing liability on valve manufacturers for asbestos products manufactured and supplied by others C. Taylor follows the trend of decisions nationwide addressing the same issue D. Crane Co. was entitled to nonsuit because it did not manufacture or supply the asbestoscontaining products to which Lt. O Neil was exposed Crane Co. is not liable for injuries allegedly caused by external insulation or flange gaskets that Crane Co. had no part in placing into the stream of commerce Crane Co. is not liable for injuries allegedly caused by internal replacement seals (internal gaskets and packing) that Crane Co. did not place into the stream of commerce The Court of Appeal erroneously held that Crane Co. is liable for replacement internal seals II. CRANE CO. IS NOT STRICTLY LIABLE FOR COMPONENT PARTS INTEGRATED INTO THE ORISKANY S STEAM PROPULSION SYSTEM A. The component parts doctrine limits liability of those who sell or distribute component parts for injuries caused by the purchaser s integration of the component into a finished product ii

4 B. The trial court, as did Taylor, correctly applied the component parts doctrine to find Crane Co. is not liable for injuries allegedly caused by valves incorporated into the Navy s steam propulsion system C. The Court of Appeal s reason for refusing to apply the component parts doctrine is flawed III. Crane Co. is not liable under any negligence-based theory of liability CONCLUSION CERTIFICATE OF WORD COUNT iii

10 S IN THE SUPREME COURT OF CALIFORNIA BARBARA J. O NEIL et al., Plaintiffs and Appellants, v. CRANE CO. et al., Defendants and Respondents. OPENING BRIEF ON THE MERITS ISSUE PRESENTED Whether a defendant product manufacturer owes a legal duty with respect to asbestos-containing materials manufactured and supplied by third parties that the defendant did not place into the stream of commerce when the asbestoscontaining materials were used with or near the defendant s product decades post-sale. INTRODUCTION This Court created California s strict products liability cause of action almost 50 years ago. Since then, California courts have limited the reach of strict liability which imposes 1

11 liability without fault to those entities that have a significant role in placing an injury-producing product into the stream of commerce, such as manufacturers, retailers, and distributors. The Court of Appeal, however, departed from this limiting principle, and held valve maker Crane Co. responsible for asbestos released from insulating and sealing products that were not manufactured, sold, or distributed by Crane Co. Because the Court of Appeal s opinion represents an unwarranted departure from the long-standing stream-of-commerce rule consistently applied not only throughout California but in the vast majority of other jurisdictions, this Court should reverse the Court of Appeal and reinstate the trial court s nonsuit and defense judgment. For over 150 years, Crane Co. has been a manufacturer and supplier of valves and other fluid-handling equipment. During World War II, Crane Co. sold valves to the United States Navy, some of which included asbestos-containing internal seals made by third parties, in compliance with then-existing military product requirements. The Navy used those valves to build ships in support of the war effort, and it insulated some of those valves with asbestos-containing material that it purchased from third parties. Those ships included the USS Oriskany. The Oriskany was constructed in the 1940 s and was in service for over 20 years before Lt. Patrick O Neil boarded it in Another 40 years after he boarded the ship, Lt. O Neil s family sued Crane Co. for wrongful death resulting from Lt. O Neil s exposure to asbestos during his stint on the Oriskany. 2

12 Crane Co., however, did not manufacture or supply any of the miles of asbestos-containing material that the Navy used to insulate the piping and the valves connected to the Oriskany s steam propulsion system. Crane Co. also did not manufacture or supply any of the asbestos-containing gaskets used to connect its valves to the ship s pipes. And although Crane Co. may have supplied valves with asbestos-containing seals to the Navy when the Oriskany was built in the 1940 s, it did not manufacture or supply any replacement sealing material the Navy obtained from third parties long before Lt. O Neil boarded the Oriskany. At the conclusion of the evidence, the trial court granted defendants motion for nonsuit. While plaintiffs appeal was pending, the First Appellate District, Division Five, decided Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564 (Taylor), a case involving the same factual scenario and the same legal issues presented here. The Court of Appeal in Taylor acknowledged the long-standing principle of California law limiting a product manufacturer s potential liability for harm caused by products the defendantmanufacturer placed into the stream of commerce. The Taylor court then observed that, as here, the manufacturer defendants in that case (which included Crane Co.) did not manufacture or supply the asbestos-containing insulation or sealing materials to which the plaintiff was exposed, and therefore were not legally responsible for injuries caused by those products. The Court of Appeal in this case, however, rejected Taylor along with the numerous authorities from California and 3

13 elsewhere upon which Taylor was based. The Court of Appeal concluded that Crane Co. can be held liable for asbestoscontaining products placed in the steam of commerce by others, because the court believed those products were necessarily and foreseeably used with the valves Crane Co. supplied to the Navy decades earlier. The Court of Appeal s rejection of the stream-of-commerce test is neither grounded on any decision of this Court nor good policy. This Court has consistently declined to expand the scope of strict liability when to do so would not serve the underlying policy of fixing liability on the marketing enterprise behind the injury-causing product. That approach is sound, because the entities in the chain of distribution of an injury-causing product are the entities that can best avoid the product s risks, insure against them, and bear the costs associated with them. The approach is also sound because it limits strict liability to those who actually make and market the products, instead of expanding liability to any entity foreseeably connected to an injury-producing product. For these reasons, the stream of commerce approach has been applied consistently in California and elsewhere, including in cases involving exactly the same facts presented here. The Court of Appeal s contrary approach represents a recurring phenomenon in asbestos litigation expanding the reach of strict products liability to find a source of recovery to substitute for the actual manufacturers and suppliers of the materials that released the asbestos fibers to which individuals 4

14 like Lt. O Neil were exposed, entities that are now bankrupt and pay asbestos-related personal injury claims through a trust compensation system. The abandonment of established legal principles, however, is not justified by the search for a solvent defendant. This Court should reverse the judgment of the Court of Appeal and reinstate the trial court s nonsuit ruling in favor of Crane Co. STATEMENT OF THE CASE A. The U.S. Navy embarks on a massive ship-building campaign to fight World War II. From the beginning to the end of World War II, the United States Navy quintupled in size, going from about 1,000 ships to about 5,000 ships. (15 RT 2773; see also 11 RT 1761.) The warships built during that war effort are among the most complex machine[s] that man has ever designed and put together, needing to be light, fast, and self-supporting. (15 RT ) Steam is the lifeblood of a World War II era warship. (7 RT 896.) A complex series of pipes connected to massive boilers creates the steam that not only powers the engines, but provides energy to operate other onboard systems. (14 RT ; see also 14 RT 2481.) To control the flow of steam and liquid running through the pipes, the steam system incorporated thousands of valves. (7 RT 900.) 5

15 Broadly defined, a valve is a mechanical device used to control the flow of liquid or gases from one point to another. (See 7 RT 913.) Valves usually include gaskets and packing materials as sealants to prevent the material flowing through the valve from leaking. (7 RT ) For the valves used by the Navy during the World War II era, these seals were sometimes made of materials that contained asbestos as part of their chemical composition. (7 RT 908, 915, ; 8 RT ) Given the heat of the steam flowing through the pipes (850 degrees Fahrenheit), the Navy insulated the piping and attached components to keep the crew from burning themselves and to prevent heat loss. (6 RT ; 7 RT 898; 10 RT 1689; 11 RT 1761.) Among the various insulation options available to it, the Navy preferred asbestos-containing insulation materials because those materials were inexpensive, effective, and lightweight. (6 RT 779; 7 RT 1013; 11 RT 1761; 14 RT ) Indeed, President Franklin D. Roosevelt signed an order directing the conservation of asbestos for military use. (7 RT 1012; 11 RT 1762.) B. Crane Co. supplies valves to the Navy. Crane Co. has been making valves for over 150 years. (12 RT ) Crane Co. manufactured and supplied many valves used on Navy ships built during World War II. (7 RT ; see also Taylor, supra, 171 Cal.App.4th at p

16 [Crane Co. valves were essential to powering... aircraft carrier[s] that [were] used to defend the United States during the greatest armed conflict of the 20th century ].) The valves Crane Co. supplied to the Navy complied with then-existing military specifications. (7 RT ; 15 RT , 2692; see also 8 RT ; 15 RT 2692; 16 RT 3008 [trial court noting the United States Navy was the party responsible for preparing the specifications and making approval of the actual drawings ].) The Navy determined what equipment would go on its ships and what parts that equipment would contain; the equipment manufacturers had to supply products conforming to the Navy s decisions. (7 RT , , 1087; 15 RT 2692, 2702.) Where the Navy specified use of an asbestos-containing component, a valve manufacturer like Crane Co. was required to use the specified component. (7 RT 1059.) 1 Crane Co., however, did not manufacture any asbestos-containing products included with its valves, but purchased asbestos packing and gaskets from vendors approved by the Navy. (11 RT ; 12 RT 2065, 2072; 15 RT ) The Navy replaced the original asbestos-containing packing and gaskets during periodic 1 Crane Co. s valves interchangeably used both asbestos and metal internal gaskets. (7 RT 915; 8 RT 1210; 12 RT 2072.) However, plaintiffs expert acknowledged that the design drawings of the valves used on the Oriskany indicate that the internal gaskets on that ship were made of metal. (8 RT , 1211.) 7

17 maintenance. (12 RT ) 2 There is no evidence suggesting the Navy obtained the replacement packing and gaskets from Crane Co. (See Taylor, supra, 171 Cal. App. 4th at p. 572.) Once the valves were obtained from Crane Co., the Navy connected them to the piping of the steam propulsion system by flanges, usually sealed by an asbestos-containing gasket in between the connection. (7 RT , 954, 965; 8 RT 1204.) The Navy then covered the valve, as it did with the piping and other equipment, often with asbestos-containing insulation materials. (8 RT ) Crane Co. neither manufactured nor supplied any flange gaskets or external insulation to which Lt. O Neil may have been exposed, nor did its valves need asbestos-containing gaskets or insulation to function. (7 RT 968; 8 RT [plaintiffs expert noting that the metal valves when supplied were uninsulated and could do their job without 2 The Court of Appeal and plaintiffs have asserted that the valves required asbestos. (Typed opn., 3, 18.) Crane Co. s valves, however, can operate in naval applications with internal seals of many different materials. (See 7 RT 915; Braaten v. Saberhagen Holdings (2008) 165 Wash.2d 373, 380, [198 P.3d 493, , 503] (Braaten) [noting that more than 60 types of packing had been approved for naval use, and Crane Co. s catalog list[ed] non-asbestos-containing packing and gasket material ]; Taylor, supra, 171 Cal.App.4th at pp [noting that other types of materials could have been used instead of asbestos].) Thus, to the extent asbestos was required it was a result of the need for inexpensive, lightweight, and heat-resistant material to be included within the steam propulsion system and the Navy s preference for asbestos-containing materials to serve those ends, not the physical requirements of the valves. 8

18 insulation]; see also 7 RT 1066; 8 RT ; 14 RT ) 3 C. Lt. O Neil is exposed to asbestos on the USS Oriskany in the 1960 s, long after the Navy had replaced the asbestos-containing components supplied with Crane Co. s valves. Plaintiff Patrick O Neil was a Navy officer who served aboard the USS Oriskany between 1965 and (10 RT ) The Oriskany was an Essex-class aircraft carrier, with a population equal to the size of a small city. (7 RT 1098; 15 RT 2751.) During his time aboard the Oriskany, Lt. O Neil s job duties included, among other things, supervising Navy seamen performing equipment repairs in the engine and boiler rooms. (10 RT ) These repairs included work with valves, pumps, boilers, and other components of the steam propulsion system. (10 RT ) When a piece of equipment required repair, a Navy seaman would remove the external insulation, disconnect it from the flange, remove the internal 3 Asbestos-containing insulation, gaskets, and packing were not just used with valves. Rather, the Navy often used one or more of these materials in connection with a wide variety of products and equipment, including boilers, turbines, pipes, valves, pumps, flanges, fittings, evaporators, forced draft blowers, compressors, condensers, fuel oil heaters, distillers, and generators, among other things. (See 8 RT ; 11 RT 1881, ) 9

19 seals, repair the item, replace the seals and gaskets, and reconnect it. (10 RT ) Removal of the external insulation could be a dusty process that released asbestos fibers in concentrations that far exceeded any asbestos exposure that might occur from working with asbestos-containing gaskets or packing materials. (10 RT ; see 13 RT ) The Navy did not warn the seamen who performed this work about the dangers of working with asbestos-containing insulation materials. (10 RT 1671, 1675, ) The Navy conducted studies in the 1940 s and 1960 s, and concluded that the amount of asbestos released from the work routinely done on Navy ships was not harmful. (8 RT ) 4 Crane Co. a company whose valves sometimes incorporated asbestos-containing sealing components manufactured by other companies could not have told the Navy anything it did not know about the potential harmful effects of asbestos. (7 RT 1097; 11 RT ) Indeed, at the time Crane Co. supplied the valves to the Navy and through the late 4 The 1940 s study concluded that pipe covering operations in Navy shipyards were safe. (6 RT ) That turned out to be wrong in hindsight; by the 1960 s decades after the Crane Co. valves at issue in this case were sold to the Navy many believed that pipe coverers were at risk of contracting asbestos-related diseases. (6 RT 797; 8 RT ; 11 RT , , 1870.) The number of asbestos fibers released from work with asbestos gaskets and packing, however, is thousands of times less than the pipe-covering work that the Navy studied, and is considered by some experts to be less than even the current threshold exposure level considered to be harmful. (13 RT ) 10

20 1960 s when Lt. O Neil was stationed on the Oriskany, nobody in the country believed that asbestos at levels released from working with gaskets or packing was harmful. (6 RT ; 9 RT ; 11 RT 1856.) To the extent there is evidence that Lt. O Neil was exposed to asbestos dust from work performed on Crane Co. valves, there is no evidence that any of the asbestos dust to which he was exposed came from a product manufactured, supplied, or designed by Crane Co. Crane Co. did not manufacture, supply, or design external insulation or flange gaskets to which Lt. O Neil may have been exposed. (8 RT ) And at the time Lt. O Neil boarded the Oriskany, the asbestos-containing internal gaskets and packing that were included with the Crane Co. valves originally had long ago been replaced with materials manufactured and supplied by others. (8 RT ; 11 RT 1902; see also typed opn., 15 & fn. 8.) D. Lt. O Neil contracts mesothelioma and his wife and children sue several entities that manufactured or supplied asbestos to the Navy. After a trial against the non-settling defendants, the court grants nonsuit. The Court of Appeal reverses. Decades after he completed his service on the Oriskany, Lt. O Neil contracted mesothelioma. (6 RT 715.) 5 He died in 5 Mesothelioma is a cancer of the lung lining, often associated with exposure to asbestos. (6 RT 688.) 11

21 2005. (12 RT 1970.) His wife and children then sued more than a dozen entities who allegedly manufactured or supplied asbestos-containing materials to the Navy under negligence and product liability theories. (1 AA 1-34.) By the time of trial, only a few of these entities remained, including Crane Co. and Warren Pumps. At the conclusion of a 12-week trial, Crane Co. sought nonsuit on all theories of liability. Crane Co. argued primarily that it was not responsible as a matter of law for injuries caused by asbestos products it did not manufacture, supply, or design. (16 RT , ) The trial court granted nonsuit in favor of Crane Co., because, inter alia, Crane Co. did not manufacture or supply any asbestos-containing material to which Lt. O Neil was exposed. In so doing, the Court explained that the Navy was knowledgeable regarding the use of the asbestos-containing materials and it not Crane Co. was responsible for the integration of the asbestos-containing materials to which Lt. O Neil was exposed into the completed steam propulsion system for the Oriskany. (16 RT ) Plaintiffs appealed the judgment following the dismissal of their claims. Pending appeal, the First Appellate District, Division Five, decided Taylor, supra, 171 Cal.App.4th 564, supporting the trial court s ruling. On facts comparable to the facts here, the Taylor court relied on this Court s strict liability jurisprudence, as well as authority in other jurisdictions deciding the same issue, and concluded that valve makers are 12

22 not responsible as a matter of law for injuries to Navy workers exposed to asbestos-containing materials manufactured or supplied by third parties. The Taylor court cited three reasons for its holding: (1) the valve manufacturer is not part of the chain of distribution of insulation and replacement gaskets and packing that the valve maker does not manufacture or sell; (2) the valve manufacturer has no duty to warn of the dangers of products manufactured and sold by others; and, as the trial court held here; (3) the valve manufacturer is not responsible under the component parts doctrine for dangers created by the use of its valves and pumps when integrated into the steam propulsion systems on Navy ships. (Taylor, supra, 171 Cal.App.4th at pp ; see also Braaten, supra, 198 P.3d 493; Lindstrom v. A-C Product Liability Trust (6th Cir. 2005) 424 F.3d 488 (Lindstrom).) The Second Appellate District, Division Five, rejected the opinions in Taylor and Braaten and reversed the trial court s nonsuit ruling. 6 This Court granted review. 6 Since the Court of Appeal s decision here, the Second District, Division Three decided Merrill v. Leslie Controls, Inc. (2009) 179 Cal.App.4th 262, and Division Two issued an unpublished opinion in Hall v. Warren Pumps LLC (Feb. 16, 2010, B208275) 2010 WL [nonpub opn.], both of which agreed with Taylor. This Court then granted review in Merrill, deferring briefing until the conclusion of this case. 13

23 LEGAL DISCUSSION I. CRANE CO. IS NOT STRICTLY LIABLE FOR INJURIES CAUSED BY EXPOSURE TO ASBESTOS- CONTAINING PRODUCTS IT DID NOT MANUFACTURE OR SUPPLY. A. This Court has imposed strict liability on only those entities that place defective products into the stream of commerce. The strict liability doctrine permits a plaintiff to prevail simply by establishing that the defendant manufactured or supplied a defective product that caused the plaintiff s injury. To prevail, the plaintiff does not have to establish any fault on the defendant s part, and the defendant cannot defend the action by showing that it acted reasonably. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, ) 7 The application of the doctrine of strict liability has been, and should continue to be, determined to a large extent by the fundamental policies which underlie it. (Anderson, supra, 53 Cal.3d at p. 995.) Although the adoption of strict liability was a departure from traditional tort law principles Justice Cardozo 7 Strict liability claims may be based on three types of defects manufacturing defects, design defects, and warning defects, i.e., inadequate warnings or failures to warn. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995 (Anderson); Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426.) 14

24 characterized it as an assault upon the citadel of privity 8 this Court has never expanded the doctrine so far as to make a defendant liable for an injury-causing product that the defendant did not place into the stream of commerce. The core policy underlying the doctrine is to fix liability wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. (Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 462 (Escola) (conc. opn. of Traynor, J.).) Indeed, the purpose of strict liability has been, and continues to be, insuring that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63 (Greenman).) This Court has fulfilled these policy goals by applying strict liability to only those entities that put the injury-causing product into the stream of commerce. (See Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1191 (Peterson), citing Greenman, supra, 59 Cal.2d 57; Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 252; see also Escola, supra, 24 Cal.2d at p. 462 (conc. opn. of Traynor, J.) [strict liability applies to the entities responsib[le] for the defective product reaching the market ]; accord, Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 739 (Daly) [noting that the basis for imposing strict liability on an entity is that it marketed or distributed a defective product ]; Bostick v. Flex 8 See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) (1960) 69 Yale L.J. 1099, 1099 & fn. 1, citing Ultramares Corp. v. Touche (1931) 255 N.Y. 170, 180 [174 N.E. 441, 445]. 15

25 Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 88 [ The doctrine of strict products liability imposes strict liability in tort on all of the participants in the chain of distribution of a defective product ].) The entities in the chain of distribution of an injurycausing product are the entities that can best avoid the product s risks, insure against them, and bear (and spread) the costs associated with them. (Escola, supra, 24 Cal.2d at p. 462.) In addition to furthering policy goals, the stream of commerce principle is, in a word, fair, in imposing liability on only the responsible parties. The notion that the imposition of liability should depend[] upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant s control is a basic building block of tort law that predates strict liability. (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 597.) Consistent with this stream of commerce/chain of distribution rule and the policy underlying it, this Court has expanded the scope of strict liability when to do so would impose liability upon those that profit from, and can influence, the marketing of the injury-causing product. (See Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, (Vandermark).) In Vandermark, the court expanded strict liability to intermediate product retailers because such entities may be the only member of [the marketing] enterprise reasonably available to the injured plaintiff... [and] may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end. (Id. at p. 262) The retailer s 16

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